拾得信用卡在ATM机使用之行为性质辨析

An Analysis on the Nature of Fraudulent Using the Lost Credit Card on ATM

关于拾得他人信用卡并在ATM机上使用的行为,应属于诈骗性质,不构成盗窃罪。如果对该种行为进行整体评价,则可以得出其在本质上具有诈骗性质的结论,因此信用卡诈骗说更具合理性。但信用卡诈骗说仅笼统地承认该类行为具有诈骗性质,而对其构成特征没有细化,存在着诸多缺陷。应从智能机器的范围、人类对机器所授予的处分财产权限、智能机器所模拟的人类思维的判断范围、诈骗罪的受害主体等四个方面予以限定,从而使信用卡诈骗罪与盗窃罪予以区分。

The view is not rational that the behavior of picking up others＇ credit cards and u- sing it on the ATM is no deception but should be the crime of theft. If we evaluate it on the whole, we can conclude that it is fraud in nature, so the credit card fraud view is more rea- sonable. The view of credit card fraud has many defects, because it is only generally ac- knowledged that this kind of behavior is fraud and its characteristics have not been re- fined. So we should define its range from the following aspects： the range of intelligent ma- chines, disposal of property rights of machines, the scope of intelligent machines imitating human thinking and the victims of the crime of fraud. And then credit card fraud and theft can be distinguished.